‘Bait and Switch’ at Dept. of Education’s Negotiated Rulemaking Session

WASHINGTON, February 24, 2014—Today, the Department of Education began the second of three sessions of negotiated rulemaking on changes to federal campus crime reporting requirements. Unfortunately, negotiators are attempting to advance regulatory measures specifically rejected by lawmakersin the 2013 reauthorization of the Violence Against Women Act (VAWA), including a requirement that campus judiciaries employ our nation’s lowest evidentiary standard in sexual harassment and sexual assault hearings.

Participants in today’s rulemaking are supposed to negotiate regulatory changes made by VAWA to campus safety and security reporting requirements in the Jeanne Clery Act, which mandates that colleges accepting federal funding publicly disclose information about campus crime. But the Foundation for Individual Rights in Education (FIRE) is concerned by the negotiators’ disregard for both the statutory boundaries of the rulemaking and clear legislative intent.

“Several negotiators have been explicit about their desire to insert language requiring that campus judiciaries use the preponderance of the evidence standard when deciding sexual harassment and sexual assault cases,” said FIRE Legislative and Policy Director Joe Cohn. “This effort to circumvent congressional intent is galling—not only because doing so is clearly beyond the negotiators’ authority under the Negotiated Rulemaking Act, but also because Congress explicitly rejected requiring the ‘preponderance’ standard when passing VAWA reauthorization.”

Before determining the scope of the negotiated rulemaking, the Department of Education held three days of public comment. Following numerous suggestions regarding the topics that the negotiated rulemaking should address, the Department of Education announced the parameters of the rulemaking in a notice published in the Federal Register on September 19, 2013:

[W]e have decided to establish an additional negotiating committee to prepare proposed regulations to address changes made by VAWA to the campus safety and security reporting requirements in the Clery Act. In addition we may propose additional changes to clarify and update the existing campus safety and security reporting requirements.

Despite the limited scope of the notice, negotiators are attempting to expand their reach by addressing issues relating to campus discipline which cannot fairly be categorized as campus safety and reporting requirements. Multiple negotiators have raised the possibility of mandating the preponderance of the evidence standard.

Early drafts of the Reauthorization of the Violence Against Women Act included language that would have mandated the preponderance of the evidence standard’s usage in campus sexual harassment and sexual assault cases, but that language was intentionally removed before the bill was passed. In fact, Congress also removed language that required universities to “provide a prompt and equitable investigation and resolution” in those cases, and replaced it with a requirement that proceedings be “prompt, fair, and impartial.” This change was made because in a 2011 “Dear Colleague” letter, the Department of Education stated that Title IX’s implementing regulations, which mandate “prompt and equitable resolution” of complaints, require the use of the preponderance standard Congress sought to avoid mandating.

But the draft regulations authored by the Department of Education circumvent congressional intent by including a provision that states, “An institution’s disciplinary proceedings are prompt, fair, and impartial if the proceedings … comply with guidance issued by the U.S. Department of Education’s Office for Civil Rights.” In other words, the draft regulations would effectively codify use of the preponderance of the evidence standard in campus hearings, despite such a requirement having been considered and rejected by Congress.

In a further departure from federal law, negotiated rulemakers have also proposed a regulation that would define any sexual encounter lacking “affirmative, unambiguous, and voluntary agreement” as a reportable sexual offense. (Such “affirmative consent” requirements create a situation in which an individual can be found guilty of sexual assault by being unable to prove he or she obtained explicit verbal consent to every sexual activity throughout a sexual encounter.) This requirement appears to conflict with Section 304 of VAWA, which requires that reports must be made using the definitions from the FBI’s uniform crime reporting system.

Good governance, democratic principles, and federal law demand that negotiated rulemaking committees restrict themselves to the scope of the notice under which those committees are formed. When committees go beyond that scope, affected stakeholders are unfairly shut out of the process.

“The negotiated rulemaking process does not empower negotiators to sneak into law substantive requirements that were debated and rejected by Congress,” said Cohn. “Negotiated rulemakers were not elected by the public. They must not replace Congress’ will with their own. Federal courts interpreting the Negotiated Rulemaking Act require that the negotiating committees stick only to the topics identified in, or that are the ‘logical outgrowth of,’ the notice. Seeking to add legal requirements that Congress specifically rejected cannot possibly be a ‘logical outgrowth’ of rulemaking.”

FIRE will be watching the process as it unfolds and hopes that the proposed regulations that may come out of the committee are consistent with the group’s charge, and that their work will help aid institutions in implementing VAWA.

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.